What is an “open and obvious” hazard?
The “open and obvious” rule is an exception to the law of premises liability in most states. Some defendants in these cases offer the rule as an affirmative defense explaining why they should not be held liable for the plaintiff’s injuries, even if the plaintiff was injured on the defendant’s property.
Under the premises liability laws in most U.S. states, a business owner has a duty to protect invitees, usually customers or clients, from any hazardous conditions on the business’s property by either fixing the condition or warning invitees that the condition exists, so they can protect themselves. The duty to warn may also exist if the visitor is a licensee, or a social guest. In some cases, the duty to warn even extends to trespassers, if the property owner knew or could reasonably believe certain people might trespass, or enter his property without permission. The “duty to warn” is based on the idea that property owners generally know what’s wrong with their property much better than strangers do, and he should therefore warn visitors about any condition on the property that might injure them.
The “open and obvious” doctrine provides an exception to the rule. It states that if a condition was open and obvious to a reasonable person when the plaintiff was injured, the defendant is not liable for failing to fix the condition or warn the plaintiff, because the plaintiff could have discovered and avoided the condition just as easily as the defendant could have warned the plaintiff.
What makes a condition “open and obvious” differs depending on a state’s particular law. Some states hold that a condition is “open and obvious” if a reasonable person could have found the condition and avoided it, thus avoiding injury. Courts in these states may rule that a condition was “open and obvious” and that an injured plaintiff cannot win her case, even if the plaintiff did not see the condition herself in time to avoid it. Courts in other states, however, may consider whether the plaintiff herself was able to discover and avoid the condition when deciding whether or not it is “open and obvious.”
Not all states allow defendants to use “open and obvious” as a complete defense. In some states, whether or not a condition is “open and obvious” is only one fact that the judge or jury considers when deciding whether comparative negligence should apply. In these states, a plaintiff may be held partly responsible for failing to see a hazard, but she may not be completely prevented from recovering damages from the defendant, if the defendant’s failure to warn or to fix the condition was more egregious than the plaintiff’s failure to notice the condition before being injured by it.
For example, suppose that one winter morning the plaintiff slips and falls on ice in the defendant’s parking lot after buying some groceries from the defendant’s store (which sits on the edge of the parking lot). In a state that allows the “open and obvious hazard” to be a complete defense, the court may find that the defendant is not liable because the ice was open and obvious, a reasonable person would have seen it and avoided it, and the plaintiff is simply out of luck for not doing what a reasonable person would have done in her place.
In a state that uses “open and obvious” as part of a comparative negligence, however, the court will not automatically state the plaintiff loses even if the defendant proves that the icy patch was open and obvious. In these states, the court will likely require the jury to ask whether the plaintiff herself was negligent for failing to see and avoid the open and obvious ice, and if so, whether her negligence outweighs the defendant’s negligence in failing to clean up the ice or to warn customers about it. If the jury finds the defendant is still more responsible than the plaintiff, the defendant will likely have to pay damages, though the amount may be reduced by whatever percentage of the responsibility the jury assigns to the plaintiff.
